Citation Nr: 21023754 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-43 752 DATE: April 21, 2021 ORDER Entitlement to a rating in excess of 30 percent for hypertensive heart disease prior to December 8, 2011 and from April 1, 2012 to November 23, 2017 is denied. Entitlement to a 60 percent, but no higher, rating for hypertensive heart disease from November 24, 2017 is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. REMANDED Entitlement to service connection for a right shoulder rotator cuff tear is remanded. Entitlement to service connection for a gastrointestinal condition with nausea is remanded. FINDINGS OF FACT 1. Prior to December 8, 2011 and from April 1, 2012 to November 23, 2017, the Veteran’s service-connected hypertensive heart disease was not manifested by more than one episode of acute congestive heart failure in the past year; or dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 3 METs, but not greater than 5 METs; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 2. From November 24, 2017, the Veteran’s service-connected hypertensive heart disease manifested by a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. 3. The Veteran’s service-connected hypertensive heart disease, chronic obstructive pulmonary disease (COPD) with asthma, and hypertension do not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSIONS OF LAW 1. Prior to December 8, 2011 and from April 1, 2012 to November 23, 2017, the criteria for a disability rating in excess of 30 percent for hypertensive heart disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7007. 2. From November 24, 2017, the criteria for a disability rating of 60 percent, but no higher, for hypertensive heart disease are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7007. 3. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to November 1965 and from January 1991 to June 1991. This matter is on appeal from March 2012 and January 2016 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, a hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in June 2018 when it was remanded for further development. 1. Hypertensive Heart Disease The Veteran contends that he is entitled to an increased rating for hypertensive heart disease. The Veteran has been assigned an initial 30 percent rating for hypertensive heart disease prior to December 8, 2011, a temporary total disability rating from December 8, 2011, and a 30 percent rating from April 1, 2012 under hyphenated Diagnostic Code 7017-7007. 38 C.F.R. § 4.104. As the Veteran was assigned the maximum possible allowable rating during the period from December 8, 2011 to March 31, 2012, that period is moot and will not be discussed further. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Diagnostic Code 7007 provides that a 30 percent rating is warranted for a history of hypertensive heart disease resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 5 METs, but not greater than 7 METs; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent rating is warranted for a history of hypertensive heart disease resulting in more than one episode of acute congestive heart failure in the past year; or resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 3 METs, but not greater than 5 METs; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. Finally, a 100 percent rating is warranted for a history of hypertensive heart disease resulting in chronic congestive heart failure; or resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of 3 METs or less; or left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. Prior to November 24, 2017 In this case, September 2011 VA treatment records reflect that the Veteran underwent an exercise stress test and obtained a maximum workload of 8 METs which stopped due to exhaustion. The clinician noted an impression of moderate physical capacity positive for exercise induced painless ischemia. In October 2011, the Veteran was provided with a VA examination in which the Veteran reported experiencing intermittent episodes of chest pain described as a pressure burning sensation, non-radiating, with mild intensity. He reported an increase in the frequency and intensity of the episodes. He had recently undergone a cardiac catheterization that revealed he had diffuse coronary artery disease. His physician had recommended that he undergo coronary artery bypass surgery and he had been scheduled to undergo such surgery in November 2011. The Veteran underwent METs stress testing and exercised for 8 minutes and 4 seconds and achieved a maximum heart rate of 120 beats per minute. The maximum blood pressure was 160/85 mmHg and the maximum workload was 10.1 METs. Exercise was stopped due to exhaustion, and there was no chest pain during the study. The clinician noted a diagnosis of left ventricular hypertrophy. The computer-generated left ventricular ejection fraction had a value of 61 percent, but the examiner indicated the ejection fraction was 65 to 70 percent. The examiner indicated this was a severely abnormal study and indicated there was scintigraphic evidence of reversible perfusion changes in the anterior and inferior walls, the septum and the inferoapical wall segment that were compatible with exercise-induced myocardial ischemia. The examiner noted no history or evidence of congestive heart failure or pulmonary hypertension. The examiner indicated the Veteran could perform activities of daily living, but he had limited capacity to perform house chores that involved physical exertion, such as mowing the lawn. In June 2013, the Veteran was provided with an additional VA examination. The examiner noted that the Veteran underwent coronary bypass surgery in December 2011. There was no evidence of cardiac hypertrophy or dilatation. The Veteran did not undergo exercise stress testing or interview-based METs testing. The examiner noted an April 2012 echocardiogram which showed left ventricular ejection fraction at 70 to 75 percent. The examiner noted no history of congestive heart failure. Based on the foregoing, the Board finds that, prior to November 24, 2017, the Veteran’s service-connected hypertensive heart disease was not manifested by more than one episode of acute congestive heart failure in the past year; or dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 3 METs, but not greater than 5 METs; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Accordingly, prior to November 24, 2017, the preponderance of the evidence is against a finding that the Veteran meets the criteria for a rating in excess of 30 percent during the appeal period, and the claim is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7007.  From November 24, 2017 On November 24, 2017, the Veteran was provided with an additional VA examination. The Veteran reported that his condition had been stable since he underwent coronary bypass surgery. He denied chest pain and stated that he walks daily for 15 to 30 minutes and mows the lawn. Echocardiogram results did not show evidence of left ventricular hypertrophy and noted a left ventricular ejection fraction of 70 to 75 percent. The Veteran underwent interview based METs testing which reflected dyspnea and fatigue at greater than 3 to 5 METs, which was found to be consistent with activities such as light yard work, mowing the lawn, and brisk walking. The examiner noted that the Veteran’s heart condition impacts his ability to work in an occupational environment that requires strenuous duties such as heavy lifting, pushing, or pulling but would not impact his ability to perform sedentary employment activities such as clerical work. The examiner noted no history of congestive heart failure. During the March 2018 hearing, the Veteran reported shortness of breath that required medical treatment. The Veteran discussed his medical history of undergoing heart surgery and using pacemakers. He reported no improvement and stated that he experiences episodes in which he requires assistance due to shortness of breath. Accordingly, the record reflects that the Veteran’s disability manifested by dyspnea and fatigue at greater than 3 to 5 METs from November 24, 2017, the date of the VA examination that reflected such findings. The record does not otherwise indicate a factually ascertainable increase in severity prior to this date. Additionally, the weight of the evidence is against a finding that the Veteran experienced chronic congestive heart failure, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. As such, from November 24, 2017, the evidence more nearly approximates the criteria for a 60 percent, but no higher, rating, and the claim is granted to that extent. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7007.   TDIU The Veteran contends that he is unable to secure or follow substantially gainful employment due to his service-connected disabilities.  Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a).  The established policy of VA reflects that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word “substantially” suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  The Court has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual Veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (1) the Veteran’s history, education, skill and training, (2) the Veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (3) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).  Moreover, age is not a factor to be considered in evaluating the Veteran’s unemployability. 38 C.F.R. § 4.19. If the Board determines that the Veteran’s unemployability was a result of his age and non-service-connected disabilities, the Board is still required to decide, without regard to the non-service-connected disabilities or age, whether the Veteran’s service-connected disabilities are sufficiently incapacitating as to render him unemployable. Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992).  VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In accordance with the partial grant awarded above, the Veteran has the following non-total rated service-connected disabilities: hypertensive heart disease, rated at 30 percent prior to December 7, 2011 and from April 1, 2012 to November 23, 2017, and 60 percent thereafter; chronic obstructive pulmonary disease (COPD) rated at 30 percent from August 26, 2015; and, hypertension rated at 10 percent. Accordingly, the Veteran does not meet the criteria for a schedular TDIU prior to November 24, 2017. However, all cases of Veterans who are unemployable but do not meet the schedular requirements set forth in § 4.16(a) should be submitted to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). Upon review of the record, the Board finds that the Veteran’s service-connected disabilities do not preclude him from securing or following substantially gainful employment consistent with his education and industrial background and that prior to November 24, 2017 do not warrant referral to Compensation Service for extraschedular consideration. In October 2011 and July 2013, the Veteran was provided with VA examinations for hypertension in which the clinicians stated that the Veteran’s hypertension did not impact his ability to work. The October 2011 examiner stated that the Veteran was assigned to different duties at work due to his heart condition. The examiner noted problems with lifting and carrying, lack of stamina, weakness or fatigue, and pain and stated that the Veteran is able to perform activities of daily living although he has limited capacity to perform house chores that involve physical exertion, such as mowing the lawn. In a December 2014 correspondence, the Veteran stated that his health had been deteriorating and have made him “[in]capable of doing any work.” In December 2015, the Veteran was provided with a VA examination for the respiratory condition in which the examiner stated that the Veteran is “limited to perform in a job that requires more-than-ordinary physical activity.” The Veteran was provided with a VA examination for hypertension in December 2015 in which the clinician stated that the Veteran’s hypertension does not impact his ability to work. She noted that the Veteran stopped working in 1991 because he “was very busy with the job in the National Guard and Army.” A December 2015 private opinion from Dr. K.S.O. states that the Veteran “is totally disabled from work and/or physical activity” and that the “condition was caused as a result of military service.” However, Dr. K.S.O. listed several conditions for which the Veteran is not service connected, such as insomnia, chronic headache, and an anxiety disorder. The central inquiry in a claim for TDIU is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Further, the clinician did not provide a rationale for this opinion. Thus, the Board assigns no probative value to this opinion. In April 2016, VA received a Respiratory Condition Disability Benefits Questionnaire (DBQ) completed by Dr. K.S.O., who stated that the Veteran’s respiratory condition impacts his ability to work because he experiences two to four exacerbations of the condition per year. In a March 2017 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran reported that he worked as a police officer from 1966 to 1992. He reported that he left his last job because of his disability and reported that his heart condition, hypertension, and COPD prevented him from securing or following any substantially gainful occupation. He also reported completing four years of college and obtaining a bachelor’s degree in social services in 1992. During the November 2017 VA examination for the heart condition, the examiner opined that the Veteran’s heart condition will cause functional limitations or impact his ability to perform activities in an occupational environment that requires strenuous duties such as heavy lifting, pushing, or pulling, but would not impact his ability to perform sedentary employment activities such as clerical work. The Veteran was provided with a VA examination for hypertension in November 2017, and the clinician stated that the Veteran’s hypertension “will not cause any functional limitation in any occupational environment or impact his ability to perform any employment activities.” During the March 2018 hearing, the Veteran’s representative discussed the November 2017 VA opinion and stated that “looking at his age, looking at everything and now with, if everything works in his favor for his increased evaluations, I believe that he is not able to work, and that’s my professional opinion.” However, as explained above, the Board must decide whether the Veteran’s service-connected disabilities are sufficiently incapacitating as to render him unemployable, without regard to the Veteran’s age. Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992).  Regarding the Veteran’s specific education, training, skill, and experience, he has completed four years of a college education and has obtained a degree in social services. This history reflects the mental ability to perform activities such as following instructions, completing tasks, and communicating with others. The Board acknowledges the functional impairment discussed above which results in fatigue which could result in impaired mental ability. However, the record does not reflect that these symptoms manifest with such a severity that they result in mental impairment such that they preclude substantially gainful employment. Regarding the Veteran’s physical ability (both non-exertional and exertional), the Board acknowledges that the Veteran’s service-connected disabilities cause functional impairment of the ability to engage in heavy lifting, pushing, or pulling. However, the record reflects an ability to perform activities of daily living and does not reflect an inability to sit, stand, walk, grasp, or reach. Thus, the Board finds that the Veteran’s physical ability, notwithstanding the functional impairment discussed above, permits sedentary and semi-sedentary employment and employment involving very light physical work. This limitation in physical ability renders the Veteran unable to perform tasks more strenuous than moderate physical work but would not preclude occupations which physically require no more than light walking, sitting, standing, grasping, and reaching, such as a clerical job for which the Veteran has the requisite skills, experience, and education. While VA law does not define ‘sedentary,’ the Board can give the term meaning and relevance on a case-by-case basis addressing the medical and lay evidence in light of the veteran’s education, training, and work history. Specifically, where a veteran’s ability to perform sedentary work is a basis for the Board’s decision, the meaning of sedentary work must be determined from the particulars of the medical opinion in which it is used. That is, the Board must explain this meaning to the extent that it is not apparent from the Board’s overall discussion of the opinion as well as how the concept of sedentary work factors into the veteran’s overall disability picture and vocational history, and the veteran’s ability to secure or follow a substantially gainful occupation. Withers v. Wilkie, 30 Vet. App. 139, 147 (2018). As such, using the Merriam Webster dictionary definition of “sedentary” (not migratory; doing or requiring much sitting; not physically active) and in light of the November 2017 VA opinion, the Board defines sedentary employment as occupations that involve much sitting, and do not call for much physical activity. Although sedentary work is defined to include much sitting, a certain amount of walking and standing is often necessary in carrying out job duties in sedentary employment. The Veteran’s education, training, skill, and experience reflect an ability to communicate clearly, follow instructions, interact and work with others, and complete tasks which are necessary for sedentary type employment or employment involving very light physical work, such as clerical employment.  Accordingly, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran’s service-connected hypertensive heart disease, COPD with asthma, and hypertension preclude him from securing or following substantially gainful employment consistent with his education and industrial background. Thus, referral for an extraschedular TDIU prior to November 24, 2017, and entitlement to TDIU from November 24, 2017 is not warranted in this case. In reaching this determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim that doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder rotator cuff tear is remanded. 2. Entitlement to service connection for a gastrointestinal condition with nausea is remanded. As explained above, this matter was remanded for further development in a June 2018 Board decision. The record reflects that the RO scheduled a VA examination in October 2019 in accordance with the remand directives but that the Veteran failed to report for the examinations. A June 2020 appellate brief reflects that the Veteran’s representative described the reason for the failure to appear as “unknown,” and the Veteran has not provided good cause for missing the appointment. The Board recognizes that the duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). However, although the Board’s June 2018 remand had requested an in-person examination, the Board finds that it is likely an opinion on the etiology of the Veteran’s conditions can be obtained without an in-person examination. Thus, the Board finds that this matter must be remanded to obtain an opinion on the etiology of these conditions. Further, the June 2018 Board remand instructed the agency of original jurisdiction (AOJ) to obtain a 2002 MRI report which reportedly indicated the right shoulder condition was possibly from an old injury. The record reflects that on remand the AOJ obtained VA treatment records for the period from January 2016 to August 2019; however, it is not clear whether efforts were undertaken to obtain the identified record from 2002. Thus, upon remand, the AOJ must undertake efforts to obtain this record to ensure substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the results of an MRI undertaken by VA on the right shoulder completed in 2002 (see March 2018 hearing transcript at 11). If efforts to obtain these records are unsuccessful, document all steps taken. 2. Obtain and associate with the claims file updated VA treatment records from August 2019 to the present. 3. After completing the development in items 1 and 2, obtain an opinion from an appropriate clinician for the Veteran’s claim for service connection for a right shoulder disability. The clinician must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s credible report of an injury in service when stepping off a moving vehicle and alleged treatment in service. If the clinician determines that an examination of the Veteran is necessary to render an adequate opinion, such must be stated. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. After completing the development in items 1 and 2, obtain an opinion from an appropriate clinician for the Veteran’s claim for service connection for a gastrointestinal condition. The clinician must opine whether each identified gastrointestinal disability is at least as likely as not related to an in-service injury, event, or disease, including alleged treatment in service, to include reports of nausea and vomiting in service. If the clinician determines that an examination of the Veteran is necessary to render an adequate opinion, such must be stated. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing   necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.